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Wednesday, December 30, 2015

‘Big Bang Theory’ Producers Sued in “Soft Kitty” Copyright Case

Producers of the hit TV show The Big Bang Theory got a legal ‘bazinga’ in a new lawsuit contesting the show’s allegedly unauthorized use of nursery rhyme lyrics written eight decades ago by a New Hampshire school teacher.  The lawsuit, filed in New York federal court by the daughters of Edith Newlin on behalf of their late mother’s estate, asserts that Ms. Newlin held the lyrical copyright, and that the show never bothered to seek permission from her estate to use the now famous Soft Kitty lyrics.  The lawsuit asserts the defendants profited from such use not only from the show on at least eight episodes, but also through lucrative merchandising including T-shirts, toys and other products.

This case demonstrates interesting problems in dealing with copyright protection.  The defendants apparently thought they negotiated a proper license to use the lyrics from Willis Music, a Kentucky-based company which published a compilation of ‘Songs for the Nursery School’ in 1937.  Most lyrical and music copyrights are assigned to publishers, so it may have been understandable for the show’s producers to believe they obtained necessary permission.  However, Ms. Newlin’s estate is asserting that Willis Music only had the limited right to include the lyrics in that book but did not acquire the underlying copyright from Edith Newlin.  If that assertion is correct, these defendants, which include sophisticated companies such as Warner Brothers, Turner Broadcasting and CBS, may have goofed and did not have the right to have Sheldon Leonard and company sing those lyrics.

Viewers should stand by to hear what defenses these companies assert to the lawsuit, and whether they try to pass some of the blame on possible copyright confusion to the publisher, even though Ms. Newlin’s estate asserts that Willis never claimed it held the copyright.  In the meantime, this lawsuit can be considered a wake up call on how important it is to ensure proper use of intellectual property protected by copyright.  Otherwise, you may need Penny singing you a comforting lullaby – and make sure her song has nothing to do with a soft kitty or little ball of fur.

Seth Berenzweig is a managing partner at Berenzweig Leonard, a DC region business law firm that includes a music, media and entertainment practice.

Friday, December 18, 2015

Internet Service Provider Held Responsible for Users’ Infringement in Landmark Decision

BMG Rights Management, one of the world’s largest music publishers, has been awarded a $25 million verdict by a federal jury after Cox Communications was found to be liable for the copyright-infringing actions of its users.

Following a week-long trial in the U.S. District Court for the Eastern District of Virginia, it was determined that Cox was on the hook for the actions of its users as a result of its failure to reasonably implement a repeat-infringer policy. While the Digital Millennium Copyright Act offers a number of “safe harbors” that typically protect internet service providers from liability for copyright infringement, Cox was found to fall outside of these safe harbors when it failed to crack down on repeated piracy. For example, after identifying known copyright pirates among Cox users, BMG sought to enlist Cox’s help in sending cease and desist letters to those users and/or terminating their internet service. Cox purported to have a policy of terminating the service of repeat copyright infringers, but in practice retained them as high speed internet customers.

BMG controls the rights to music by popular artists including David Bowie and Bruno Mars, among others. At issue in this particular lawsuit were 1,397 different copyrighted works that were downloaded illegally a total of nearly 2 million times. The jury found Cox liable for willful contributory infringement, awarding $25 million in damages. Moreover, Cox is now facing a separate lawsuit from its insurance company, which is trying to skip out on the tab in the BMG case due to “Cox’s business policy and practice of ignoring and failing to forward infringement notices and refusing to terminate or block infringing customers’ accounts.”

The impact of this landmark decision on future internet service provider liability for copyright infringement seems clear: you can probably expect ISPs to crack down much harder on copyright abuse, probably going as far as to terminate the service of repeat offenders. In the wake of this verdict, the failure to do so could result in significant liability for the service provider, in what appears to be a clear victory for artists and rights holders.

Frank Gulino is an award-winning composer and attorney with Berenzweig Leonard, LLP. He can be reached at FGulino@BerenzweigLaw.com.